Fairlake Capital, LLC v. Lathouris ( 2022 )

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FAIRLAKE CAPITAL, LLC v. PETER
LATHOURIS ET AL.
(AC 44622)
Bright, C. J., and Prescott, Elgo, Moll, Cradle, Alexander,
Suarez, Clark and DiPentima, Js.
Syllabus
The defendant N Co. appealed to this court challenging the trial court’s
denial of its motions to terminate a stay of the proceedings and to
discharge a notice of lis pendens that the plaintiff lender had recorded
against certain of N Co.’s real property. The plaintiff brought this action
seeking the avoidance of what it alleged were a fraudulent transfer of
the property to N Co. by the defendants P and L, and a fraudulent
mortgage loan to N Co. by the defendant C Co. The trial court, upon
the agreement of the parties, stayed the action pending the resolution
of a prior, separate action the plaintiff had brought against P and L,
alleging breach of guaranty and unjust enrichment in connection with
their transfer of the property to N Co. N Co. thereafter filed motions
to terminate the stay and to discharge the notice of lis pendens, alleging
that the plaintiff lacked probable cause to sustain its claims. The court
denied both motions, reasoning that the stay precluded it from adjudicat-
ing the motion to discharge the notice of lis pendens. While N Co.’s
appeal from the trial court’s orders was pending, this court denied a
motion the plaintiff filed to dismiss the appeal for lack of a final judg-
ment. On appeal, N Co. claimed that the denial of its motion to discharge
was a final judgment and that the trial court improperly relied on the
stay to decline to conduct a statutorily (§§ 52-325a and 52-325b) required
hearing on the motion to discharge. Held:
1. The trial court’s denial of N Co.’s motion to discharge the notice of lis
pendens was an appealable final judgment, and the court abused its
discretion in relying on the discretionary stay to decline to conduct the
hearing to adjudicate the merits of the motion to discharge under §§ 52-
325a and 52-325b:
a. Although the denial of N Co.’s motion to discharge the notice of lis
pendens was an interlocutory order, the governing statutory (§ 52-325c
(a)) provision plainly states that any order entered as provided in § 52-
325b (b) constitutes a final judgment for purposes of appeal; moreover,
contrary to the plaintiff’s claim that the court’s order denying the motion
was not a final judgment because the court never heard the motion on
the merits, this court did not believe that the legislature drafted §§ 52-
325a, 52-325b and 52-325c to deprive a party of a right to appeal when
a probable cause hearing was not held and the required findings were
not made, as the right to a probable cause hearing exists to protect the
constitutional rights of property owners such as N Co., which explicitly
raised its constitutional right to a prompt hearing; furthermore, the
court’s denial of N Co.’s motion to discharge because it exercised its
discretion not to lift the stay did not alter the fact that N Co. had a
statutory right to appeal, and this court determined that it could reach
the trial court’s denial of N Co.’s motion to lift the stay, which, although
not a final judgment itself, was inextricably intertwined with the final
judgment that resulted from the court’s denial of the motion to discharge.
b. The trial court abused its discretion when it denied the request by N
Co. to lift the temporary stay for the purpose of going forward with a
hearing on its motion to discharge the notice of lis pendens; the motion
to discharge was not subject to a discretionary stay of indeterminate
length, and to conclude that the stay could preclude the adjudication of
the merits of the motion to discharge would undermine N Co.’s constitu-
tional right to procedural due process to be heard on the motion at a
meaningful time in a meaningful manner and its statutory right to a
prompt hearing.
2. This court’s determination that the trial court erred in denying N Co.’s
motion to discharge the notice of lis pendens by improperly relying on
the discretionary stay necessarily resolved the question of whether the
court should have lifted the stay to permit a hearing to proceed on the
motion to discharge; accordingly, the discretionary stay was ordered
lifted for the limited purpose of considering the merits of and conducting
a hearing on N Co.’s motion to discharge.
(Two judges concurring in part and dissenting in part in one opinion)
Argued April 14—officially released August 30, 2022
Procedural History
Action to recover damages for the defendants’ alleged
fraudulent transfer of certain real property owned by
the defendant Number Six, LLC, and for other relief,
brought to the Superior Court in the judicial district
of Stamford-Norwalk and transferred to the Complex
Litigation Docket; thereafter, the court, Lee, J., issued
an order staying the action; subsequently, the court,
Ozalis, J., denied the motions filed by the defendant
Number Six, LLC, to terminate the stay and to discharge
a notice of lis pendens filed against certain of its real
property, and the defendant Number Six, LLC, appealed
to this court; thereafter, this court denied the plaintiff’s
motion to dismiss the appeal for lack of a final judgment.
Reversed; remanded with direction.
Danielle J. B. Edwards, with whom, on the brief,
was Peter V. Lathouris, for the appellant (defendant
Number Six, LLC).
Patrick McCabe, with whom, on the brief, was Yan
Margolin, pro hac vice, for the appellee (plaintiff).
Opinion
BRIGHT, C. J. The defendant Number Six, LLC (Num-
ber Six), appeals from the order of the trial court deny-
ing its motion to discharge a notice of lis pendens
(motion to discharge) recorded by the plaintiff, Fairlake
Capital, LLC.1 Number Six also appeals from the order
of the court denying its motion to lift a discretionary
stay in the underlying proceedings to allow it to pursue
the motion to discharge. Our disposition of this appeal
hinges on two issues that concern the denial of the
motion to discharge. First, as a threshold matter impli-
cating our subject matter jurisdiction, we must deter-
mine whether the denial of the motion to discharge is
a final judgment for appeal purposes. If we answer that
question in the affirmative, the second issue is whether
the court abused its discretion by denying the motion
to discharge, without holding a hearing and adjudicating
the merits of the motion in accordance with General
Statutes §§ 52-325a and 52-325b, solely on the proce-
dural ground that the discretionary stay was in place.
Number Six claims that the denial of the motion to
discharge is a final judgment and that the court improp-
erly denied the motion to discharge on the basis of
the discretionary stay. The plaintiff, on the other hand,
maintains that (1) no final judgment exists, or, alterna-
tively, (2) the court properly denied the motion to dis-
charge on the basis of the discretionary stay. We con-
clude that (1) the denial of the motion to discharge is
a final judgment for appeal purposes and (2) the court
abused its discretion when it relied on the discretionary
stay to deny Number Six’s motion to discharge.2 We
further conclude that our resolution of Number Six’s
claim concerning its motion to discharge necessarily
resolves the question of whether the court should have
lifted the discretionary stay to permit a hearing on that
motion.3
The following facts and procedural history are rele-
vant to our resolution of this appeal. On August 1, 2017,
the plaintiff commenced the present action against
Peter Lathouris (Peter), Patricia Spanos Lathouris
(Patricia), Continental Mortgage Banking, Ltd. (Conti-
nental), and Number Six. The plaintiff’s four count com-
plaint asserts claims of fraudulent transfer against the
defendants in violation of the Connecticut Uniform
Fraudulent Transfer Act (CUFTA), General Statutes
§ 52-552a et seq., against the defendants.4
In support of those claims, the plaintiff alleged the
following facts in its complaint. In April, 2017, the plain-
tiff commenced an action against Peter and Patricia
claiming breach of guaranty and unjust enrichment. See
Fairlake Capital, LLC v. Lathouris, Superior Court,
judicial district of Stamford-Norwalk, Complex Litiga-
tion Docket, Docket No. X08-CV-XX-XXXXXXX-S (August
13, 2019) (69 Conn. L. Rptr. 168) (guaranty action), aff’d,
210 Conn. App. 801, 271 A.3d 689, cert. denied, 343
Conn. 928, A.3d (2022). On May 12, 2017, Peter
and Patricia purchased real property located in New
Canaan (property) for $1.9 million. That same day, for
consideration in the sum of one dollar, Peter and Patri-
cia quitclaimed the property to Number Six, which was
formed two days before the sale and which at all rele-
vant times was owned, controlled, or dominated by
Peter and/or Patricia. Additionally, on May 12, 2017,
Continental, which was formed in 1990 and which is
owned, operated, managed, or dominated by Peter and/
or Patricia, extended a mortgage loan to Number Six
in the sum of $2.5 million. A portion of the mortgage
loan was used to pay the sellers of the property, with
Number Six retaining the balance of the funds. As relief,
the plaintiff seeks, inter alia, avoidance of the alleged
fraudulent transfer of the property and of the alleged
fraudulent mortgage loan.
The parties do not dispute that the plaintiff, on the
basis of its fraudulent conveyance claims, recorded a
notice of lis pendens against the property. The plaintiff
appended a copy of the notice of lis pendens, dated
July 28, 2017, to its complaint.
On October 15, 2018, the plaintiff filed a motion to
stay the present action pending the resolution of the
guaranty action, which, according to the plaintiff, was
scheduled at the time to be tried in April, 2019. On
December 14, 2018, after initially having objected to
the motion to stay, the defendants consented to the
trial court staying the present action for three months.
On January 14, 2019, the court, Lee, J., upon the parties’
consent, stayed the present action until March 15, 2019.
On October 31, 2019, the defendants filed a motion
to terminate the discretionary stay, contending that,
since March 15, 2019, the present action had been ‘‘infor-
mally stayed by agreement with the consent of the
court’’ but that they no longer assented to the stay.5 On
December 3, 2019, the plaintiff filed an objection. On
January 9, 2020, the court denied the defendants’
motion, determining that ‘‘[t]he rationale for the original
stay of this action remains valid. The resolution of this
case is heavily dependent upon the result of the trial
on the merits in [the guaranty action]. As a result, the
possibility of an inconsistent result is substantial. The
continuation of the stay until the [guaranty action] is
resolved will promote judicial economy.’’
On August 21, 2020, Number Six filed a motion to
terminate the discretionary stay, asserting that it
intended to file, inter alia, a motion to discharge the
notice of lis pendens that the plaintiff had recorded
against the property. Number Six stated that an appeal
had been filed in the guaranty action, thereby delaying
resolution of that separate matter.6 On September 14,
2020, the plaintiff filed an objection, arguing, inter alia,
that any delays in the guaranty action were caused by
Peter and Patricia and that there had been no change
in circumstances warranting a termination of the stay.
On September 18, 2020, Number Six filed a reply brief.
On September 21, 2020, the court, Ozalis, J., denied
Number Six’s motion and sustained the plaintiff’s objec-
tion ‘‘[f]or the reasons stated in the plaintiff’s objection
. . . and as the rationale for the original stay of this
action remains . . . .’’ On October 29, 2020, Number
Six filed a motion to reargue, which the court summarily
denied on December 2, 2020.
On February 16, 2021, Number Six filed the motion
to terminate stay at issue in this appeal, requesting that
the discretionary stay be lifted for the limited purpose
of enabling it to file a motion to discharge the notice
of lis pendens. That same day, Number Six filed the
motion to discharge, claiming that (1) the plaintiff lacks
probable cause to sustain the validity of its claims
asserted against Number Six and (2) the notice of lis
pendens is defective and, thus, ‘‘void and of no force or
effect.’’ On March 12, 2021, the plaintiff filed a combined
objection to both motions. On March 24, 2021, Number
Six filed a reply brief. On March 29, 2021, the court
summarily denied both motions and, in addition, sum-
marily sustained the plaintiff’s objection. On April 1,
2021, Number Six filed this appeal challenging the deni-
als of both motions.
On June 22, 2021, the plaintiff filed with this court a
corrected motion to dismiss this appeal for lack of a
final judgment.7 On July 2, 2021, Number Six filed an
objection. On July 28, 2021, while the corrected motion
to dismiss was pending, this court, sua sponte, ordered
the trial court to articulate whether its denial of the
motion to discharge and its order sustaining the plain-
tiff’s objection ‘‘were based on the merits or were proce-
dural because of the stay of this case.’’ On July 29, 2021,
the trial court articulated that the ‘‘orders denying the
motion to discharge and sustaining the objection
thereto were procedural because of the stay of this
case.’’ That same day, this court granted the plaintiff’s
corrected motion to dismiss this appeal for lack of a
final judgment.
On August 9, 2021, Number Six filed a motion to
reconsider this court’s judgment of dismissal. On
August 17, 2021, the plaintiff filed an objection. On
September 3, 2021, while the motion to reconsider was
pending, this court ordered, sua sponte, the parties to
file supplemental memoranda to address the following
two issues: (1) whether, in light of the trial court’s
articulation stating that its denial of the motion to dis-
charge was ‘‘ ‘procedural,’ ’’ our Supreme Court’s deci-
sion in Ahneman v. Ahneman, 243 Conn. 471, 706 A.2d
960 (1998), ‘‘appl[ies] such that [Number Six], as to the
denial of the motion to discharge . . . has filed its
appeal from a final judgment’’; and (2) ‘‘[i]f this court
concludes that [Number Six] has appealed from a final
judgment as to the denial of the motion to discharge
. . . because Ahneman applies, [whether] this court
[should] remand the case for a prompt hearing on the
motion to discharge, or [whether] there [are] other
issues in this appeal that would remain to be addressed
as to the denial of that motion . . . .’’ The parties filed
supplemental memoranda in accordance with our brief-
ing order.
On October 6, 2021, we granted the motion to recon-
sider and denied the corrected motion to dismiss with-
out prejudice to the parties addressing the final judg-
ment issue in their respective appellate briefs,8 as
augmented by their supplemental memoranda. In addi-
tion, we ordered that this appeal would be heard en
banc.
I
We first address the portion of this appeal taken from
the trial court’s denial of the motion to discharge based
solely on the existence of a discretionary stay of the
underlying proceedings.9 Number Six claims that (1)
the denial of the motion to discharge is a final judgment
for appeal purposes and (2) the court, in denying the
motion to discharge, improperly relied on the stay to
decline to hold a hearing and to address the merits of
the motion pursuant to §§ 52-325a and 52-325b. The
plaintiff maintains that (1) there is no final judgment
or, in the alternative, (2) the court correctly denied the
motion to discharge based on the stay. For the reasons
that follow, we conclude that (1) the denial of the
motion to discharge is an appealable final judgment
and (2) the court abused its discretion when it relied
on the discretionary stay to decline to conduct a hearing
and to adjudicate the merits of the motion to discharge
in accordance with §§ 52-325a and 52-325b.
Before analyzing Number Six’s claims, we briefly clar-
ify the scope of its appeal as to the denial of the motion
to discharge. In the motion to discharge, Number Six
raised the following two independent grounds to sup-
port its motion: (1) the plaintiff lacks probable cause
to sustain the validity of its claims against Number Six;
and (2) the notice of lis pendens is defective and, thus,
‘‘void and of no force or effect.’’ These distinct grounds
are governed by different statutory provisions. See
Dunham v. Dunham, 217 Conn. 24, 35–38, 584 A.2d
445 (1991) (‘‘When a property owner challenges the
existence of probable cause for the validity of the lis
pendens claim, resolution of this application for dis-
charge is governed by General Statutes §§ 52-325a, 52-
325b and 52-325c. . . . When, however, a property
owner files a motion for discharge alleging an invalid
notice of lis pendens, resolution of this motion is gov-
erned in its entirety by General Statutes § 52-325d.’’
(Footnote omitted.)), overruled on other grounds by
Santopietro v. New Haven, 239 Conn. 207, 682 A.2d
106 (1996).
In its appellate briefs, Number Six argues that the
court precluded it from ‘‘holding the plaintiff to its
proof’’ on the issue of probable cause. Number Six also
cites §§ 52-325a and 52-325b, which are relevant to its
probable cause claim, but it does not refer to § 52-325d,
which applies to the second ground in its motion, i.e.,
that the notice of lis pendens is defective. Moreover,
in its principal appellate brief, Number Six raises an
argument addressing the merits of whether probable
cause exists; however, the brief is silent as to the merits
of Number Six’s claim that the notice of lis pendens is
‘‘void and of no force or effect’’ because it is defective.
Finally, unlike an order based on § 52-325b, an order
based on § 52-325d is not an immediately appealable
final judgment. See Dunham v. Dunham, supra, 217
Conn. 40. For these reasons, we construe Number Six’s
claim on appeal as to the denial of the motion to dis-
charge to be limited to its probable cause claim, and
we limit our review accordingly.10 See footnote 19 of
this opinion.
In addition, we note that our review of Number Six’s
claims as to the denial of the motion to discharge
requires us to construe statutes governing notices of
lis pendens. ‘‘The construction of a statute is a question
of law subject to de novo review. . . . When construing
a statute, [o]ur fundamental objective is to ascertain
and give effect to the apparent intent of the legislature.
. . . In other words, we seek to determine, in a rea-
soned manner, the meaning of the statutory language
as applied to the facts of [the] case, including the ques-
tion of whether the language actually does apply. . . .
In seeking to determine that meaning, General Statutes
§ 1-2z directs us first to consider the text of the statute
itself and its relationship to other statutes. If, after
examining such text and considering such relationship,
the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratex-
tual evidence of the meaning of the statute shall not
be considered. . . . When a statute is not plain and
unambiguous, we also look for interpretive guidance
to the legislative history and circumstances surrounding
its enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and [common-law] principles governing the same gen-
eral subject matter . . . .’’ (Citation omitted; internal
quotation marks omitted.) Aldin Associates Ltd. Part-
nership v. State, 209 Conn. App. 741, 767, 269 A.3d
790 (2022).
A
At the outset, because the issue raises a question
regarding our subject matter jurisdiction, we consider
whether the denial of the motion to discharge consti-
tutes a final judgment. Number Six argues that, pursuant
to the controlling statutes, a denial of a motion to dis-
charge a notice of lis pendens is a final judgment. The
plaintiff argues that the court’s order denying the
motion is not a final judgment because the court never
heard the motion on the merits but, instead, denied it
solely because of the stay it had entered in the case.
Relying on our Supreme Court’s decision in Prevedini
v. Mobil Oil Corp., 164 Conn. 287, 320 A.2d 797 (1973),
the plaintiff argues that the court’s order denying the
motion to discharge was essentially the court’s simply
affirming its decision to leave the discretionary stay in
place and is thus not an appealable final judgment. We
agree with Number Six that the court’s denial of the
motion to discharge is, by statute, an appealable final
judgment. We further conclude that Prevedini is inap-
plicable to the circumstances of this case.
We begin with the applicable legal principles regard-
ing our jurisdiction. ‘‘The appellate courts have a duty
to dismiss, even on [their] own initiative, any appeal
that [they lack] jurisdiction to hear. . . . We therefore
must always determine the threshold question of
whether the appeal is taken from a final judgment
before considering the merits of the claim.’’ (Citation
omitted; internal quotation marks omitted.) Wolfork v.
Yale Medical Group, 335 Conn. 448, 459, 239 A.3d 272(2020). ‘‘A determination regarding . . . subject matter
jurisdiction is a question of law . . . [and, therefore]
our review is plenary.’’ (Internal quotation marks omit-
ted.) Glastonbury v. Sakon, 172 Conn. App. 646, 651,
161 A.3d 657 (2017).
‘‘The jurisdiction of the appellate courts is restricted
to appeals from judgments that are final.’’ (Internal quo-
tation marks omitted.) Wolfork v. Yale Medical Group,
supra, 335 Conn. 459. ‘‘[T]he legislature may [however]
deem otherwise interlocutory actions of the trial courts
to be final judgments, as it has done by statute in limited
circumstances. . . . Alternatively, the courts may
deem interlocutory orders or rulings to have the attri-
butes of a final judgment if they fit within either of the
two prongs of the test set forth in State v. Curcio, [191
Conn. 27, 31, 463 A.2d 566 (1983)]. . . . Under Curcio,
the landmark case in the refinement of final judgment
jurisprudence . . . interlocutory orders are immedi-
ately appealable if the order or ruling (1) terminates a
separate and distinct proceeding or (2) so concludes
the rights of the parties that further proceedings cannot
affect them.’’ (Internal quotation marks omitted.) Niro
v. Niro, 314 Conn. 62, 67–68, 100 A.3d 801 (2014).
Here, it is undisputed that the denial of the motion
to discharge is an interlocutory ruling. Accordingly, to
be considered a final judgment for appeal purposes,
the order must be subject to immediate appellate review
either (1) by statute or (2) pursuant to the test articu-
lated in Curcio. We conclude that, pursuant to the appli-
cable statutes, any denial of a motion to discharge a
notice of lis pendens under § 52-325b, including denials
that occur in the absence of the required probable cause
hearing and finding as to the merits of the motion,
constitutes an appealable final judgment.
In discerning whether there is a statutory right to
appeal from the denial of the motion to discharge, we
focus our attention on the statutory scheme governing
applications and motions to discharge notices of lis
pendens. Section 52-325a provides in relevant part: ‘‘(a)
Whenever a notice of lis pendens is recorded against
any real property pursuant to subsection (a) of section
52-325, the property owner, if the action has not then
been returned to court, may make application, together
with a proposed order and summons, to the superior
court for the judicial district to which the action is
made returnable, or to any judge thereof, that a hearing
or hearings be held to determine whether such notice
of lis pendens should be discharged. The court or judge
shall thereupon order reasonable notice of such applica-
tion to be given to the plaintiff and shall set a date or
dates for the hearing or hearings to be held thereon.
. . .
‘‘(c) If the action for which notice of lis pendens was
recorded, is pending before any court, the property
owner may at any time, unless the application under
subsection (a) of this section has previously been ruled
upon, move that such notice of lis pendens be dis-
charged of record.’’
Section 52-325b provides in relevant part: ‘‘(a) Upon
the hearing held on the application or motion set forth
in section 52-325a, the plaintiff shall first be required
to establish that there is probable cause to sustain the
validity of his claim and, if the action alleges an illegal,
invalid or defective transfer of an interest in real prop-
erty, that the initial illegal, invalid or defective transfer
of an interest in real property occurred less than sixty
years prior to the commencement of the action. . . .
‘‘(b) Upon consideration of the facts before it, the
court or judge may: (1) Deny the application or motion
if (A) probable cause to sustain the validity of the claim
is established or (B) in an action that alleges an illegal,
invalid or defective transfer of an interest in real prop-
erty, probable cause to sustain the validity of the claim
is established and the initial illegal, invalid or defective
transfer of an interest in real property occurred less
than sixty years prior to the commencement of the
action, or (2) order such notice of lis pendens dis-
charged of record if (A) probable cause to sustain the
validity of the plaintiff’s claim is not established or (B)
in an action that alleges an illegal, invalid or defective
transfer of an interest in real property, the initial illegal,
invalid or defective transfer of an interest in real prop-
erty occurred sixty years or more prior to the com-
mencement of the action.’’
Section 52-325c (a) provides: ‘‘Any order entered as
provided in subsection (b) of section 52-325b shall be
deemed a final judgment for the purpose of appeal.’’
An appeal from an order entered pursuant to § 52-325b
(b) is subject to a seven day appeal period.11 See General
Statutes § 52-325c (b).
Section 52-325c (a) plainly states that ‘‘[a]ny order
entered as provided in subsection (b) of section 52-
325b’’ constitutes a final judgment for the purpose of
appeal. (Emphasis added.) Section 52-325b (b)
expressly delineates two orders that a trial court may
enter on an application or a motion to discharge a notice
of lis pendens after conducting a prompt hearing and
upon considering the facts before the court. Specifi-
cally, the court may either (1) deny the application or
motion if probable cause is established and, in an action
alleging an illegal, invalid, or defective transfer of an
interest in real property, the alleged transfer occurred
less than sixty years prior to the commencement of the
action; see General Statutes § 52-325b (b) (1); or (2)
issue an order discharging the notice of lis pendens if
probable cause is not established or, in an action alleg-
ing an illegal, invalid, or defective transfer of an interest
in real property, the alleged transfer occurred sixty
years or more prior to the commencement of the action.
General Statutes § 52-325b (b) (2).
Although, read together, §§ 52-325a, 52-325b and 52-
325c contemplate that the court will hold a hearing and
make probable cause findings before ruling on a motion
to discharge a notice of lis pendens, we do not construe
those statutes as requiring a hearing and findings in
order for the denial of such a motion to be an appealable
final judgment. ‘‘We often have stated that it is axiomatic
that those who promulgate statutes . . . do not intend
to promulgate statutes . . . that lead to absurd conse-
quences or bizarre results.’’ (Internal quotation marks
omitted.) Raftopol v. Ramey, 299 Conn. 681, 703, 12 A.3d
783 (2011). Accordingly, we will not construe statutes
in a way that will lead to such results. See id.; see also
Derrane v. Hartford, 295 Conn. 35, 46 n.9, 988 A.2d 297(2010) (declining to interpret statute in way that would
lead to unworkable result because such result was
‘‘surely not what the legislature intended’’); In re Corey
E., 40 Conn. App. 366, 374, 671 A.2d 396 (1996) (interpre-
ting statute so as to avoid ‘‘bizarre and unworkable
results and [advance] the policies that underpin the
statute’’).
The legislature clearly intended for interlocutory
orders denying a motion to discharge a notice of lis
pendens to be immediately appealable. Although the
legislature also intended that the Superior Court con-
duct a hearing and make findings before issuing such
an order, it would make little sense to read §§ 52-325a,
52-325b and 52-325c as limiting appeals to those orders
issued only after a hearing. Such an interpretation effec-
tively would permit a trial court to thwart a party’s right
to appeal simply by not holding the required hearing.
This outcome cannot be what the legislature intended
when it drafted this statutory scheme. See Derrane v.
Hartford, supra, 295 Conn. 46 n.9. In fact, it makes no
sense that a party deprived of the process contemplated
by the statutes would have fewer appellate rights than
a party who was provided with the statutorily required
process. Consequently, we do not believe that the legis-
lature drafted §§ 52-325a, 52-325b and 52-325c to
deprive a party of a right to appeal from the denial of
a motion to discharge a notice of lis pendens in cases
in which a probable cause hearing was not held and
the required findings not made, given that (1) such
a hearing and probable cause findings are statutorily
required; see General Statutes §§ 52-325a and 52-325b;
and (2) the right to a probable cause hearing exists
specifically to protect the constitutional rights of prop-
erty owners. See part I B of this opinion. Thus, we
conclude that any denial of a motion to discharge a
notice of lis pendens that challenged the existence of
probable cause constitutes a final judgment under § 52-
325b (b) (1).
We also are not persuaded by the plaintiff’s argument
that our Supreme Court’s decision in Prevedini v. Mobil
Oil Corp., supra, 164 Conn. 287, requires a different
result. In Prevedini, the Mobil Oil Corporation (Mobil)
leased property for a gas station from the plaintiff, Val
Prevedini, for several years. Prevedini v. Mobil Oil
Corp., supra, 288. During the lease period, Prevedini
sold the property to another person. Id., 289. Thereafter,
Mobil commenced a civil action to enforce its right
to buy the property under its lease agreement with
Prevedini. Id., 290. Prevedini then commenced a sum-
mary process action against Mobil seeking possession
of the property because the lease had expired. Id. The
trial court stayed the summary process proceedings,
which concerned possession of the property, until the
final adjudication of the civil action, which concerned
the title to the property and would necessarily resolve
the question of the right to possession. Id., 291. Preved-
ini sought appellate review of the stay order from the
Appellate Division of the Superior Court. Id. Mobil
claimed that the Appellate Division lacked jurisdiction
over the appeal because there was no final judgment.
Id. The Appellate Division vacated the stay order, and
Mobil appealed to our Supreme Court. Id.On appeal, our Supreme Court determined that the
trial court’s order staying the summary process action
did not constitute a final judgment because the order
did not determine finally the rights of the parties. The
court held: ‘‘[T]he rights of the parties are not concluded
so that further proceedings after the rendition of the
stay order cannot affect them. There remains to be
determined the very issue for which the summary pro-
cess action was brought, namely, the question of posses-
sion of the premises. When that is resolved, following
a trial before the Circuit Court, then a final judgment
will result. The order of the Circuit Court is not a final
judgment from which an appeal lies and the Appellate
Division in denying Mobil’s motion to dismiss for lack
of jurisdiction and in vacating the stay of proceedings
ordered by the Circuit Court was in error.’’ Id., 293–94.
The plaintiff argues that the holding of Prevedini
applies in this case because the court did not resolve
Number Six’s motion to discharge on the merits but
merely delayed resolution of the motion while the case
is stayed. It argues that, when the court eventually hears
the merits, and if it denies the motion to discharge,
there will then be a final judgment from which Number
Six may appeal. We are not persuaded for a number of
reasons.
First, as previously discussed in this opinion, Number
Six has a statutory right to appeal from the court’s
denial of the motion to discharge. That the court denied
the motion because it exercised its discretion not to
lift the stay in the case does not alter this fact.
Second, as explained in part I B of this opinion, the
statutory right to a prompt hearing on the motion to
discharge has constitutional underpinnings, and Num-
ber Six has explicitly raised its constitutional right to
a prompt hearing in this appeal. There is no indication
in Prevedini that such a constitutional claim was made.
In fact, the constitutional right to a prompt hearing on
a motion to discharge a notice of lis pendens was not
recognized by our Supreme Court until its decision in
Kukanskis v. Griffith, 180 Conn. 501, 430 A.2d 21(1980), which was decided seven years after Preved-
ini.12
Finally, in Prevedini, the only issue on appeal was
the court’s stay order. In the present case, however,
the court’s order denying Number Six’s motion to lift
the stay so that it could pursue the motion to discharge
is inextricably intertwined with the court’s order deny-
ing the motion to discharge. Consequently, although
the court’s decision denying the motion to lift the stay
is not by itself a final judgment, we may reach it because
it is part of the final judgment. See Aqleh v. Cadlerock
Joint Venture II, L.P., 299 Conn. 84, 89, 10 A.3d 498(2010) (‘‘We recognize that the court’s denial of [Cadler-
ock Joint Venture II, L.P.’s] motion to cite in [Wageeh S.]
Aqleh as an additional defendant in the original action
is not, by itself, a final judgment. Nevertheless, because
that decision is inextricably intertwined with the trial
court’s ruling granting the application to discharge the
attachment, we conclude that the joint appeal is taken
from appealable final judgments.’’). Accordingly, in the
present case, the court’s order denying Number Six’s
motion to discharge is a final judgment.13
B
We now turn to Number Six’s claim on the merits as
to the denial of the motion to discharge. Number Six
contends that the court improperly relied on the discre-
tionary stay to decline to hold a hearing and to resolve
the merits of the motion in accordance with §§ 52-325a
and 52-325b. We agree.
We begin by setting forth the applicable standard of
review. Whether the court properly refused to lift the
discretionary stay to permit a hearing on the motion to
discharge is subject to review for an abuse of discretion.
See, e.g., Griffin Hospital v. Commission on Hospi-
tals & Health Care, 196 Conn. 451, 459, 493 A.2d 229(1985) (‘‘[w]e have vested a large measure of discretion
in trial judges in terminating or granting stays and, upon
review, the issue usually is whether that discretion has
been abused’’). ‘‘When reviewing claims under an abuse
of discretion standard, the unquestioned rule is that
great weight is due to the action of the trial court . . . .
Under that standard, we must make every reasonable
presumption in favor of upholding the trial court’s rul-
ing, and only upset it for a manifest abuse of discretion.
. . . [Our] review of such rulings is limited to the ques-
tions of whether the trial court correctly applied the
law and reasonably could have reached the conclusion
that it did.’’ (Citation omitted; emphasis added; internal
quotation marks omitted.) Fort Trumbull Conservancy,
LLC v. New London, 135 Conn. App. 167, 190–91, 43
A.3d 679, cert. denied, 307 Conn. 905, 53 A.3d 220 (2012);
see also Ghio v. Liberty Ins. Underwriters, Inc., 212
Conn. App. 754, 778, 276 A.3d 984 (2022) (‘‘[t]he trial
court’s exercise of its discretion will be reversed only
[when] the abuse of discretion is manifest or [when]
injustice appears to have been done’’ (internal quotation
marks omitted)).
We next summarize some important historical back-
ground underlying the statutory scheme governing
notices of lis pendens. General Statutes § 52-32514 estab-
lishes the procedure for recording a notice of lis pen-
dens. In Kukanskis v. Griffith, supra, 180 Conn. 501,
in considering a claim that the trial court had dissolved
without statutory authority a notice of lis pendens, our
Supreme Court addressed whether General Statutes
(Rev. to 1979) § 52-32515 was ‘‘unconstitutional because
it [did] not comply with the due process of law require-
ments of [the United States and Connecticut constitu-
tions] in that it fail[ed] to provide for notice to property
owners and an opportunity for them to be heard at
a meaningful time and in a meaningful manner.’’ Id.,
506–507. The court observed that ‘‘the effect of a notice
of lis pendens sufficiently interferes with the alienability
of real estate,’’ such that the court was required to
determine whether property owners were being
afforded the ‘‘minimum of due process which is consti-
tutionally required.’’ Id., 509. The court determined that,
at the time, ‘‘the Connecticut lis pendens statutes
fail[ed] to provide even the barest minimum of due
process protection.16 Most conspicuously absent [was]
any provision whatsoever for any sort of a timely hear-
ing, either before or after the recording of the notice
of lis pendens, which would give the property owner
an opportunity to be heard or require the party
recording the notice to demonstrate in any way the
probability of prevailing on the underlying action. The
statutes allow[ed] the notice of lis pendens to continue
indefinitely without any further action on the part of
the party recording it, during which time the property
owner [was] without recourse to the courts to contest
the merits of the underlying claim.’’ (Footnote added.)
Id., 510. In sum, the court concluded that the ‘‘absence
of a statutory provision for a hearing for the defendant
property owner at a meaningful time and in a meaning-
ful manner . . . deprived him of his constitutional
right to due process of law.’’ (Citation omitted; internal
quotation marks omitted.) Id., 510–11.
In 1981, following Kukanskis, our legislature enacted
No. 81-8 of the 1981 Public Acts (P.A. 81-8), which
amended General Statutes (Rev. to 1979) § 52-325 to
include language later codified, in part, in §§ 52-325a
and 52-325b. See Public Acts 1981, No. 81-8, §§ 2 and
3; see also part I A of this opinion. Two years later, our
Supreme Court in Williams v. Bartlett, 189 Conn. 471,
457 A.2d 290, appeal dismissed, 464 U.S. 801, 104 S. Ct.
46, 78 L. Ed. 2d 67 (1983), addressed whether § 52-325,
as amended by P.A. 81-8, was constitutionally infirm
on procedural due process grounds because, although
it provided for a postfiling hearing, it failed to ‘‘contain
a bonding provision or any other mechanism whereby
the property owner may substitute security to obtain
release of the [notice of] lis pendens . . . .’’ Id., 476.
The court concluded that the amended statute met the
minimum requirements of procedural due process. Id.,
480–81 and 481 n.6. Notably, in examining the amended
statute, the court commented that ‘‘[t]he prompt post-
filing hearing afforded under the [amended] statute
eliminates the risk of an erroneous deprivation of prop-
erty interests.’’ (Emphasis added.) Id., 480.
We glean two salient principles from Kukanskis and/
or Williams that guide us in resolving Number Six’s
claim. First, Number Six’s constitutional right to proce-
dural due process requires that it be afforded a hearing
to address its probable cause claim raised in the motion
to discharge, with such hearing being held ‘‘at a mean-
ingful time and in a meaningful manner . . . .’’ (Inter-
nal quotation marks omitted.) Id., 478; Kukanskis v.
Griffith, supra, 180 Conn. 510. Second, the hearing to
which Number Six is entitled pursuant to §§ 52-325a
and 52-325b must be ‘‘prompt . . . .’’ Williams v. Bart-
lett, supra, 189 Conn. 480.17
Pursuant to Kukanskis and Williams, we are com-
pelled to conclude that the court abused its discretion
when it denied Number Six’s request to lift the stay for
the purpose of going forward with a hearing on its
motion to discharge. The record demonstrates that the
stay, to which Number Six no longer consented at the
time it filed the motion to discharge, is tied to the
ongoing proceedings in the guaranty action and, thus,
is of indefinite duration. To conclude that the stay could
permissibly preclude the adjudication of the merits of
the motion to discharge would undermine Number Six’s
constitutional right to be heard on the motion to dis-
charge ‘‘at a meaningful time and in a meaningful man-
ner’’ (internal quotation marks omitted); id., 478;
Kukanskis v. Griffith, supra, 180 Conn. 510; and its
statutory right to a ‘‘prompt’’ hearing on the motion to
discharge. Williams v. Bartlett, supra, 480.
We are mindful of the well established principle that
‘‘[t]he power to stay proceedings is incidental to the
power inherent in every court to control the disposition
of the causes on its docket with economy of time and
effort for itself, for counsel, and for litigants. How this
can best be done calls for the exercise of judgment,
which must weigh competing interests and maintain an
even balance.’’ (Internal quotation marks omitted.) Lee
v. Harlow, Adams & Friedman, P.C., 116 Conn. App.
289, 311–12, 975 A.2d 715 (2009). Our holding does not
weaken a court’s broad authority to impose a discretion-
ary stay. We merely elucidate that a discretionary stay
of indefinite duration cannot function to infringe on a
litigant’s rights attendant to an application or a motion
to discharge a notice of lis pendens as bestowed by
§§ 52-325a and 52-325b, as well as constitutional guaran-
tees of procedural due process. We underscore the lim-
ited breadth of our holding. In Kukanskis and Williams,
our Supreme Court made clear that a litigant is entitled
to swift judicial action with respect to an application
or a motion to discharge a notice of lis pendens. Our
holding accords with that mandate, and we expressly
limit it to the circumstances present in this case.18
In sum, we conclude that the motion to discharge is
not subject to a discretionary stay of indeterminate
length, and, therefore, the court abused its discretion
when it relied on the stay to deny the motion to dis-
charge on procedural grounds. On remand, in accor-
dance with §§ 52-325a and 52-325b, the court must con-
duct a prompt hearing on the motion to discharge and
adjudicate the merits of the motion insofar as Number
Six claims that there is no probable cause sustaining
the validity of the plaintiff’s claims.19
II
We next address Number Six’s remaining claim that
the court improperly denied its motion to terminate the
discretionary stay.20 Our determination in part I of this
opinion that the court committed error in denying the
motion to discharge by improperly relying on the discre-
tionary stay necessarily resolves the question of
whether the court should have lifted the stay to permit
the hearing on the motion to discharge to proceed.
Accordingly, the discretionary stay must be lifted for
the limited purpose of considering the merits of, and
holding a hearing on, Number Six’s motion to discharge.
The judgment is reversed as to the denial of Number
Six’s motion to discharge the notice of lis pendens and
the case is remanded with direction to lift the discretion-
ary stay for the purpose of holding a prompt hearing
and adjudicating the merits of the motion to discharge
in accordance with General Statutes §§ 52-325a and 52-
325b and consistent with this opinion.
In this opinion PRESCOTT, ELGO, CRADLE,
SUAREZ, CLARK and DiPENTIMA, Js., concurred.
1
The plaintiff’s complaint named Peter Lathouris, Patricia Spanos
Lathouris, and Continental Mortgage Banking, Ltd., as additional defendants,
but those parties are not participating in this appeal. For clarity, we refer
to Peter Lathouris, Patricia Spanos Lathouris, Continental Mortgage Banking,
Ltd., and Number Six collectively as the defendants and individually by their
names as designated in this opinion.
2
As we further explain in part I of this opinion, in the motion to discharge,
Number Six raised two grounds on which it sought to discharge the notice
of lis pendens, only one of which (lack of probable cause) is relevant to
this appeal.
3
On November 22, 2021, Number Six filed a motion to strike portions of
the plaintiff’s appellate brief that cited the COVID-19 pandemic as a basis
supporting the court’s denials of the motion to discharge and the motion
to terminate stay, arguing that such references were improper. On November
23, 2021, the plaintiff filed an objection. On January 5, 2022, this court denied
the motion to strike without prejudice to Number Six raising its arguments
supporting the motion to strike in its reply brief. Number Six has reasserted
these arguments in its reply brief. In light of our resolution of this appeal,
we need not decide whether the plaintiff’s references to the COVID-19
pandemic in its appellate brief were improper.
4
Counts one and two of the complaint assert claims of fraudulent transfer
in violation of General Statutes §§ 52-552e and 52-552f of CUFTA, respec-
tively, against Peter, Patricia, and Number Six. Counts three and four of
the complaint assert claims of fraudulent transfer in violation of §§ 52-552e
and 52-552f of CUFTA, respectively, against all four defendants.
5
On August 28, 2019, with the defendants’ consent, the plaintiff filed a
second motion to stay the present action pending the outcome of the guar-
anty action, in which proceedings were ongoing at the time following the
denial of a motion for summary judgment filed by Peter and Patricia. The
court did not adjudicate the second motion to stay.
6
On January 29, 2020, Peter and Patricia appealed from the denial of a
motion for summary judgment, predicated in part on the doctrine of res
judicata, that they had filed in the guaranty action. See Fairlake Capital,
LLC v. Lathouris, 210 Conn. App. 801, 802–803, 271 A.3d 689, cert. denied,
343 Conn. 928, A.3d (2022). On March 1, 2022, this court affirmed
that judgment. See id., 803.
7
The plaintiff filed its original motion to dismiss this appeal on June 3,
2021, but subsequently withdrew that motion and filed the corrected motion
to dismiss to correct an erroneous reference.
8
Number Six filed its principal appellate brief prior to the October 6, 2021
order. Following the October 6, 2021 order, the plaintiff filed an appellate
brief, and, thereafter, Number Six filed a reply brief.
9
For clarity and ease of discussion, we have reordered the claims as they
are set forth in Number Six’s brief.
10
During oral argument, Number Six’s counsel made several brief com-
ments regarding purported defects in the notice of lis pendens. We do not
infer from these comments that Number Six is challenging the denial of the
motion to discharge with respect to its claim that the notice of lis pendens
is defective. Assuming arguendo that Number Six’s counsel attempted to
raise such a claim during oral argument, it is well settled that a party cannot
raise a claim on appeal for the first time during oral argument. See, e.g.,
Grimm v. Grimm, 276 Conn. 377, 393, 886 A.2d 391 (2005) (‘‘claims on
appeal . . . cannot be raised for the first time at oral argument before the
reviewing court’’), cert. denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed.
2d 815 (2006); see also Traylor v. State, 332 Conn. 789, 809 n.17, 213 A.3d
467 (2019) (‘‘[r]aising a claim at oral argument is not . . . a substitute for
adequately briefing that claim’’).
11
Number Six filed this appeal within seven days of the denial of the
motion to discharge.
12
In reaching its conclusion in Kukanskis that due process requires that
a property owner be permitted to challenge the notice of lis pendens at a
meaningful time and in a meaningful manner, the court relied on its decision
in Roundhouse Construction Corp. v. Telesco Masons Supplies Co., 168
Conn. 371, 362 A.2d 778, vacated, 423 U.S. 809, 96 S. Ct. 20, 46 L. Ed. 2d 29(1975), on remand, 170 Conn. 155, 365 A.2d 393, cert. denied, 429 U.S. 889,
97 S. Ct. 246, 50 L. Ed. 2d 172 (1976), in which it reached the same conclusion
as to mechanic’s liens. See Kukanskis v. Griffith, supra, 180 Conn. 508–509.
Roundhouse Construction Corp. also was decided after Prevedini.
13
Because we conclude that § 52-325c provides a statutory right to appeal
from any denial of a motion to discharge a notice of lis pendens under § 52-
325b, we need not determine whether the court’s denial of the motion to
discharge constitutes a final judgment under either State v. Curcio, supra,191 Conn. 31, or Ahneman v. Ahneman, supra, 243 Conn. 471.
14
General Statutes § 52-325 provides in relevant part: ‘‘(a) In any action
in a court of this state or in a court of the United States (1) the plaintiff or
his attorney, at the time the action is commenced or afterwards, or (2) a
defendant, when he sets up an affirmative cause of action in his answer
and demands substantive relief at the time the answer is filed, if the action
is intended to affect real property, may cause to be recorded in the office
of the town clerk of each town in which the property is situated a notice
of lis pendens, containing the names of the parties, the nature and object
of the action, the court to which it is returnable and the term, session or
return day thereof, the date of the process and the description of the prop-
erty, except that no such notice may be recorded in an action that alleges
an illegal, invalid or defective transfer of an interest in real property unless
the complaint or affirmative cause of action contains the date of the initial
illegal, invalid or defective transfer of an interest in real property and such
transfer has occurred less than sixty years prior to the commencement of
such action. Such notice shall, from the time of the recording only, be notice
to any person thereafter acquiring any interest in such property of the
pendency of the action; and each person whose conveyance or encumbrance
is subsequently executed or subsequently recorded or whose interest is
thereafter obtained, by descent or otherwise, shall be deemed to be a subse-
quent purchaser or encumbrancer, and shall be bound by all proceedings
taken after the recording of such notice, to the same extent as if he were
made a party to the action. . . .
‘‘(c) Notwithstanding the provisions of subsection (a) of this section, in
any action except a suit to foreclose a mortgage or other lien, no recorded
notice of lis pendens shall be valid or constitute constructive notice thereof
unless the party recording such notice, not later than thirty days after such
recording, serves a true and attested copy of the recorded notice of lis
pendens upon the owner of record of the property affected thereby. . . .’’
15
General Statutes (Rev. to 1979) § 52-325 provides in relevant part: ‘‘In
any action in a court of this state or in a district court of the United States the
plaintiff or his attorney, at the time the action is commenced or afterwards,
or a defendant, when he sets up an affirmative cause of action in his answer
and demands substantive relief at the time the answer is filed, if the same
is intended to affect real estate, may cause to be recorded in the office of
the town clerk of each town in which the property is situated a notice of
the pendency of the action, containing the names of the parties, the nature
and object of the action, the court to which it is returnable and the term,
session or return day thereof, the date of the process and the description
of the property. Such notice shall, from the time of the recording only, be
notice to any person thereafter acquiring any interest in such property of
the pendency of the action; and each person whose conveyance or encum-
brance is subsequently executed or subsequently recorded or whose interest
is thereafter obtained, by descent or otherwise, shall be deemed to be a
subsequent purchaser or encumbrancer, and shall be bound by all proceed-
ings taken after the recording of such notice, to the same extent as if he
were made a party to the action. . . .’’
16
At the time of Kukanskis, as our Supreme Court noted, ‘‘[t]he filing of
a [notice of] lis pendens require[d] no judicial action, no showing of probable
cause and no notice to the defendant property owner. The party filing the
[notice of] lis pendens [was] not required to post a bond or provide any
surety to protect the owner against damages from an unsupportable claim.
No opportunity [was] provided to the owner either before or after the
recording of the [notice of] lis pendens to challenge its propriety. Moreover,
no provision [was] made whereby the owner [could] apply for the dissolution
of the [notice of] lis pendens upon the substitution of a bond with surety.’’
Kukanskis v. Griffith, supra, 180 Conn. 507.
17
The plaintiff argues in its supplemental brief that the constitutional right
discussed in Williams ‘‘is merely to have an ‘opportunity to be heard at a
meaningful time and in a meaningful manner.’ Implicit in the trial court’s
determination here, in refusing to lift the stay, was a finding that the three
and one-half years that elapsed prior to [Number Six’s] present motion to
discharge was a sufficient opportunity, especially given [Number Six’s]
justifications for discharge—all of which, if true, would have existed since
the day the lis pendens was filed.’’ (Emphasis in original.) The plaintiff
further argues that Number Six chose to forgo its opportunity by agreeing
to the stay in this case. The record does not support the plaintiff’s claim
that the court made some implicit finding that Number Six waived its right
to a prompt hearing. Furthermore, the fact that Number Six may have agreed
to a stay of limited duration does not mean that it was forever waiving its
statutory and constitutional right to a prompt hearing.
18
As the COVID-19 pandemic has demonstrated, circumstances outside
of the control of courts and litigants may arise that preclude prompt action
on an application or a motion to discharge a notice of lis pendens. In the
present action, however, there is nothing in the record indicating that there
are external forces preventing the court and the parties from moving forward
on the motion to discharge.
19
As we explained in footnote 10 of this opinion and the accompanying
text, Number Six has not briefed a claim challenging the denial of the motion
to discharge on the basis of the discretionary stay with respect to the second
ground raised in the motion asserting that the notice of lis pendens is
defective. Accordingly, such a claim is not before us for review, and our
remand order does not contain any direction to the court with regard to
the second ground. Nevertheless, in the interests of judicial economy, we
opine that it would be prudent for the court on remand to address Number
Six’s claim that the notice of lis pendens is defective in conjunction with
the court’s consideration of Number Six’s probable cause claim.
20
As discussed previously in this opinion, we properly may consider Num-
ber Six’s claim concerning its motion to terminate the stay because this
claim is inextricably intertwined with its claim that the court erred in denying
its motion to discharge, which, as explained previously, is a final judgment.
See part I A of this opinion; see also Clukey v. Sweeney, 112 Conn. App.
534, 542, 963 A.2d 711 (2009) (‘‘in some circumstances, the factual and legal
issues raised by a legal argument, the appealability of which is doubtful,
may be so inextricably intertwined with another argument, the appealability
of which is established that we should assume jurisdiction over both’’ (inter-
nal quotation marks omitted)); see also Collins v. Anthem Health Plans,
Inc., 266 Conn. 12, 29–30, 836 A.2d 1124 (2003) (permitting interlocutory
appeal for certain claims when inextricably intertwined with other claims
that were subject to interlocutory appeal pursuant to statute).